PUBLISHED UNITED STATES COURT OF APPEALS · 1Faulkner, the first female admitted to The Citadel Corps of Cadets, joined the Corps on August 12, 1995, by virtue of court order, but

PUBLISHED

UNITED STATES COURT OF APPEALSFOR THE FOURTH CIRCUIT

JEANIE MENTAVLOS,Plaintiff-Appellant,

v.

JOHN JUSTICE ANDERSON; JAMES

SALEEBY,Defendants-Appellees,

THE CITADEL, The Military Collegeof South Carolina,

Defendant-Amicus Curiae,No. 00-1331and

THE BOARD OF VISITORS OF THE

CITADEL, The Military College ofSouth Carolina; RICHARD ELLIS,Captain; NICHOLAS BELCHER; ERIC

AMHAUS; EDWARD BOHM,Defendants,

and

UNITED STATES OF AMERICA,Intervenor-Plaintiff.

Appeal from the United States District Courtfor the District of South Carolina, at Columbia.Joseph F. Anderson, Jr., Chief District Judge.

(CA-97-2718-3-17)

Argued: January 25, 2001

Decided: May 7, 2001

Before WILLIAMS and TRAXLER, Circuit Judges, andRaymond A. JACKSON, United States District Judge for the

Eastern District of Virginia, sitting by designation.

Affirmed by published opinion. Judge Traxler wrote the opinion, inwhich Judge Williams and Judge Jackson joined.

COUNSEL

ARGUED: Leon Friedman, New York, New York, for Appellant.Sandra Jane Senn, SANDRA J. SENN, P.A., Charleston, South Caro-lina, for Appellees. Wendy Raina Johnson Keefer, BARNWELL,WHALEY, PATTERSON & HELMS, L.L.C., Charleston, South Car-olina, for Amicus Curiae. ON BRIEF: Richard A. Harpootlian, Rob-ert G. Rikard, RICHARD A. HARPOOTLIAN, P.A., Columbia,South Carolina, for Appellant. Stephanie P. McDonald, SANDRA J.SENN, P.A., Charleston, South Carolina, for Appellees. M. DawesCooke, Jr., BARNWELL, WHALEY, PATTERSON & HELMS,L.L.C., Charleston, South Carolina, for Amicus Curiae.

OPINION

TRAXLER, Circuit Judge:

Today we consider the novel question of whether two male cadetsat The Citadel, a state-supported and formerly all-male military col-lege located in Charleston, South Carolina, acted "under color of"state law, within the meaning of 42 U.S.C.A. § 1983 (West Supp.2000), when they allegedly engaged in gender-based harassment anddiscrimination designed to force a female cadet to withdraw from thecollege. We hold that they did not, and accordingly affirm the districtcourt’s grant of summary judgment to the male cadets.

I.

The Citadel, The Military College of South Carolina, is a state-supported, four-year comprehensive college, established by the Stateof South Carolina in 1842. For over 150 years, The Citadel onlyadmitted men to its full-time, residential student body known as theSouth Carolina Corps of Cadets. However, in the waning days of anextended legal battle over the constitutionality of the single-gender

2 MENTAVLOS v. ANDERSON

admissions policy of the Corps of Cadets, see Faulkner v. Jones, 10F.3d 226 (4th Cir. 1993) (discussing Shannon Faulkner’s challenge toThe Citadel’s revocation of her admission to the Corps of Cadetsbased on her gender), and in the wake of the Supreme Court’s deci-sion in United States v. Virginia, 518 U.S. 515 (1996) (holding thata similar, unconstitutional male-only admissions policy at VirginiaMilitary Institute could not be remedied with a parallel women’s pro-gram at a women’s college), The Citadel was forced to abandon itsmale-only policy and began voluntarily admitting women to its Corpsof Cadets in the fall of 1996. See United States v. Jones, 136 F.3d342, 345 (4th Cir. 1998).1

Appellant Jeannie Mentavlos was one of four women admitted toThe Citadel that fall. Upon her arrival, she was assigned to EchoCompany, an administrative unit of the Corps of Cadets. However,she withdrew from the college in December 1996. Mentavlos con-tends that during those four months the commanding administrativeofficer and several upperclass cadets assigned to Echo Company suc-cessfully conspired to perpetuate the former all-male Corps of Cadetsby driving her from the school. Mentavlos further asserts that, toaccomplish this result, the men subjected her to "sexual harassment,intimidation, and abuse" in the form of "insults, indignities, physicalassaults and humiliating treatment, which went far beyond any needto toughen, strengthen or acclimate [her] to the rigors of military dis-cipline." J.A. 25-26.

The following year, Mentavlos instituted this action against TheCitadel and its governing Board of Visitors; Captain Richard Ellis, thearmy officer assigned to act as the commanding administrative officerof Echo Company; and five upperclass cadets assigned to Echo Com-pany, including Appellees John Justice Anderson and James Saleeby.Among other claims, Mentavlos alleged that the actions of Ellis andthe individual cadets deprived her of her constitutional right to equalprotection in violation of 42 U.S.C.A. § 1983 and 42 U.S.C.A. § 1985(West 1994), and that The Citadel and The Board of Visitors violated

1Faulkner, the first female admitted to The Citadel Corps of Cadets,joined the Corps on August 12, 1995, by virtue of court order, but with-drew because of illness on August 18, 1995. See United States v. Jones,136 F.3d 342, 345 (4th Cir. 1998).

3MENTAVLOS v. ANDERSON

Title IX of the Educational Amendments of 1972, see 20 U.S.C.A.§ 1681 (West 2000), by failing to adequately respond to the known,gender-based harassment which ultimately forced her to withdrawfrom the school.

With the exception of one cadet who was in default, all defendantsmoved for summary judgment and all but Cadets Anderson andSaleeby settled the claims against them. Although Mentavlos hadoriginally alleged only that the upperclass cadets acted in concert withCaptain Ellis, a state actor for purposes of § 1983, to abuse and harassher because of her gender, she was subsequently allowed to amendher complaint to allege that the individual cadets were also stateactors and elected to proceed solely on her § 1983 claim against them.Anderson and Saleeby then moved for summary judgment on theadditional ground that they did not act "under color of" state law forpurposes of § 1983.

After conducting a fact-finding hearing on the state-actor issuewith the consent of the parties, the district court granted summaryjudgment to Anderson and Saleeby on the grounds that they did notact under color of state law and, therefore, could not be held liableunder § 1983 for the alleged violations of Mentavlos’ constitutionalrights. With regard to Saleeby, the district court granted summaryjudgment on the alternative ground that Mentavlos failed to prove thathis actions were discriminatory in nature. See Mentavlos v. Anderson,85 F. Supp. 2d 609, 628 (D.S.C. 2000). The district court then certi-fied the case as one appropriate for immediate appeal under 28U.S.C.A. § 1292(b) (West 1993).2 We consented to hear the appeal.

II.

A.

We review de novo the district court’s grant of summary judgmentto Appellees Anderson and Saleeby. See Goldstein v. Chestnut RidgeVolunteer Fire Co., 218 F.3d 337, 340 (4th Cir. 2000), cert. denied,121 S. Ct. 882, 121 S. Ct. 1096 (2001). Like the district court, we

2Because one cadet had defaulted, a damages hearing was still pendingagainst him.


review the disputed evidence concerning Appellees’ alleged gender-based harassment of Mentavlos in the light most favorable to her. SeeMentavlos, 85 F. Supp. 2d at 612; Goldstein, 218 F.3d at 341. How-ever, the district court’s factual findings regarding the state-actorissue, made with consent of the parties, are reviewed for clear error.See Fed. R. Civ. P. 52(a); Front Royal & Warren County Indus. ParkCorp. v. Town of Front Royal, Va., 135 F.3d 275, 284 (4th Cir. 1998)."A finding is clearly erroneous when, although there is evidence tosupport it, on the entire evidence the reviewing court is left with thedefinite and firm conviction that a mistake has been committed."Faulconer v. Commissioner, 748 F.2d 890, 895 (4th Cir. 1984).

B.

The facts of this case are exhaustively laid out in the district court’sopinion. See Mentavlos, 85 F. Supp. 2d at 610-20. As a military col-lege, The Citadel offers a unique educational experience to its stu-dents. Members of the Corps of Cadets are subjected to military stylerules and living conditions, and Citadel freshmen in particular aresubjected to a strict set of disciplinary and behavioral rules known asthe "Fourth Class System." Under this system, described at length inthe Cadet Regulations (the "Blue Book"), faculty and active duty mil-itary personnel assigned to the school mentor and supervise upper-class cadets, who in turn mentor and supervise those cadets belowthem. The Citadel expects from its cadets "strict and unquestioningobedience, mental and physical toughness, and mature tolerance ofconfrontation" and offers "an intense, high-stress experience designedto facilitate development of ‘The Whole Man.’" Supp. J.A. 413. Forexample:

Freshmen must come to attention whenever an upperclass-man enters their barracks or speaks to them. Freshmen areallowed only very limited, formal responses to upperclass-men: "yes Sir;" "no Sir;" "no excuse, Sir;" and "request per-mission to make a statement, Sir." When outside their ownroom or classroom, they are generally required to movebriskly (walk at 120 steps per minute) or to stand at atten-tion. Freshmen are prohibited from using a number of com-mon areas. The freshmen are required to spend time in drilland in performing company details such as cleaning the


common areas of the barracks. They are required to followdetailed and restrictive procedures at meals and to memorizeand recite certain factual information at meals and othertimes.

Mentavlos, 85 F. Supp. 2d at 617 (internal citations omitted). Day-to-day functioning of the fourth class system is dependent upon the cadetchain of command. Specifically,

[t]raining, counseling, and inspecting fourth classmen isrestricted to the chain of command. Correcting and reportingfourth classmen is the responsibility of all cadets and offi-cers associated with The Citadel who may observe aninfraction on the part of a fourth classman.

Supp. J.A. 415.

Thus, under the fourth class system, upperclass cadets are givenlimited authority to correct and report violations or infractions of TheCitadel’s rules by fourth classmen (freshmen), with day-to-day func-tioning overseen by the Cadet Regimental Commander, a cadetsenior. However, active duty military officers assigned to the schoolas faculty teach, advise, and mentor cadet leaders in the implementa-tion of the fourth class system and the ultimate responsibility forenforcement of the fourth class system rests with The Citadel Com-mandant, not with upperclass cadets. Formal discipline is initiatedthrough performance reports, which "may be submitted by an officerof The Citadel Faculty or Staff, cadet rank holders, members of theCadet Guard, and by any cadet on himself, when directed by properauthority." Supp. J.A. at 395. The cadet company commander maynote the punishment for "Class III" offenses which have assigned pen-alties, and may recommend a punishment for certain other "Class II"offenses.3 But, with the exception of the most minor Class III infrac-tions, the ultimate responsibility for administering the disciplinary

3By way of example, Class III offenses include absence from class,required formation, guard mount, tours confinements, restrictions, or all-in. Class II offenses include absence from guard post or a required event(such as a parade, athletic event, drill, or mandatory meal).


system and imposing punishment rests with the Commandant orAssistant Commandant.

In contrast to this limited authority granted to upperclass cadets tocorrect minor infractions of school rules, the Blue Book expresslyprohibits discrimination on the basis of gender or other impermissiblecriteria, including sexual harassment, and provides a specific proce-dure for reporting such complaints to The Citadel faculty. Any actionthat might be deemed hazing or abusive treatment of a freshman,regardless of whether it is gender-motivated, is also strictly prohib-ited. "Hazing is defined as striking, offering bodily harm, treatingwith violence, verbal abuse or any treatment of a tyrannical, abusive,or humiliating nature by a member of a higher class to a member ofa lower class" and "includes requiring performance of personal ser-vice or humiliating verbal abuse." Supp. J.A. 414. Upperclass cadetsare also expressly prohibited from "touch[ing] a fourth class cadet(male or female) without first asking permission and stating the spe-cific area(s) that will be touched." Supp. J.A. 414. Even then, touch-ing is allowed to occur only in an open area in full view of at leastone other cadet and "only for the purpose of providing instruction orcorrecting a uniform or posture discrepancy." Supp. J.A. 414.

Anderson and Saleeby were upperclass cadets, juniors holding therank of sergeant, assigned to Echo Company with Mentavlos in thefall of 1996. Viewing the evidence in the light most favorable to Men-tavlos, the district court found that Mentavlos had produced evidencewhich, if believed, would show that Anderson and Saleeby were eachinvolved in three alleged incidents of improper treatment of her dur-ing that fall. With regard to Saleeby, the district court found sufficientevidence to show that Saleeby (1) kicked Mentavlos in the legs onone or more occasions, but caused no bruising, and commented thatMentavlos "‘likes to be kicked’"; (2) came into Mentavlos’ roomwearing only non-uniform gym shorts and shower-type shoes on oneoccasion, although Mentavlos did not interpret the visit as being sex-ual in nature; and (3) directed another cadet to set Mentavlos’sweatshirt on fire while she was wearing it on one occasion, and thenused his foot to put it out before it burned her skin. Mentavlos, 85 F.Supp. 2d at 612-13. With regard to Anderson, the district court foundsufficient evidence to show that Anderson (1) pushed cardboard intoMentavlos’ face while ranting and raving at her because she smiled


while standing at attention, which left welts under her chin that lastedfor one or two days; (2) may have treated Mentavlos differently fromtwo male cadets when Mentavlos and another female cadet werecaught drinking alcoholic beverages just before the Thanksgivingbreak; and (3) threatened Mentavlos at various times, stating that hewould physically harm or kill her or her brother, who was an upper-class cadet at The Citadel. See id. at 613.

The district court found that upperclass cadets Anderson andSaleeby "had at least some measure of authority over [Mentavlos] byvirtue of the system created and sanctioned by The Citadel, a stateinstitution." Id. at 619. And, the district court found that it was notuncommon in this military-type environment for mild harassment totake place, "either verbally or by requiring the freshmen to engage inan activity not of the freshman’s choosing (e.g., spending long peri-ods of time polishing a given item)." Id. at 617. However, the districtcourt also found that the school recognized the risks and history ofabuse of the fourth class system, had made efforts to manage thoserisks, and clearly "did not endorse or encourage abuses of the fourthclass system." Id. at 619. On the contrary, the district court noted thatThe Citadel had, "in fact, endeavored to discourage abuses of the typealleged by" Mentavlos. Id.

Each of the alleged incidents involving Anderson and Saleebywould constitute a violation of the written policy of The Citadel. Onthis point, there appears to be no serious disagreement. Indeed, Men-tavlos reported the cardboard and "boxer shorts" incidents when theyoccurred, resulting in Anderson being disciplined and all cadets,including Saleeby, being reminded of the rules of proper attire. Men-tavlos did not voice any other complaints until just before withdraw-ing from The Citadel in December, in part due to a reasonableconcern that the male cadets might retaliate against her with moreharassment. Once reported, however, The Citadel administration con-ducted thorough investigations and imposed substantial punishments.Anderson and Saleeby, as well as other cadets, were effectivelyplaced on house arrest during the investigations; Saleeby faced a com-mandant’s board and was suspended from school for one year; andAnderson, rather than face a commandant’s board, resigned from TheCitadel, thereby precluding his return to the school. Consequently, thedistrict court found that Anderson and Saleeby’s abuses "were pun-


ished or adequately addressed when brought to the school’s attention"and that "the discipline imposed and responses given were within areasonable range of discretion to preclude any inference that theschool endorsed or condoned the alleged behaviors." Id.

III.

Section 1983 provides that "[e]very person who, under color of anystatute, ordinance, regulation, custom, or usage, of any State . . . sub-jects, or causes to be subjected, any citizen of the United States or anyperson within the jurisdiction thereof to the deprivation of any rights,privileges, or immunities secured by the Constitution and laws, shallbe liable to the party injured in an action at law, suit in equity, orother proper proceeding for redress." 42 U.S.C.A. § 1983. In order toestablish a claim under § 1983, Mentavlos must prove two elements:(1) that Anderson and Saleeby "deprived [her] of a right secured bythe Constitution and laws of the United States;" and (2) that they "de-prived [her] of this constitutional right under color of [State] statute,ordinance, regulation, custom, or usage." Adickes v. S.H. Kress & Co.,398 U.S. 144, 150 (1970) (internal quotation marks omitted).

"Like the state-action requirement of the Fourteenth Amendment,the under-color-of-state-law element of § 1983 excludes from itsreach "‘merely private conduct, no matter how discriminatory orwrongful.’" American Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 50(1999) (quoting Blum v. Yaretsky, 457 U.S. 991, 1002 (1982)); seeRendell-Baker v. Kohn, 457 U.S. 830, 838 (1982) (holding that§ 1983’s requirement that a defendant act under "color of law" istreated as the equivalent to the "state action" requirement under theFourteenth Amendment); Haavistola v. Community Fire Co., 6 F.3d211, 215 (4th Cir. 1993) (same).

The state action requirement "reflects judicial recognition ofthe fact that ‘most rights secured by the Constitution areprotected only against infringement by governments.’"Lugar v. Edmondson Oil Co., 457 U.S. 922, 936 (1982)(quoting Flagg Bros. Inc. v. Brooks, 436 U.S. 149, 156(1978)). "This fundamental limitation on the scope of con-stitutional guarantees ‘preserves an area of individual free-dom by limiting the reach of federal law’ and ‘avoids


imposing on the State, its agencies or officials, responsibil-ity for conduct for which they cannot fairly be blamed.’"Edmondson v. Leesville Concrete Co., 500 U.S. 614, 619(1991) (quoting Lugar, 457 U.S. at 936-37).

Dowe v. Total Action Against Poverty in Roanoke Valley, 145 F.3d653, 658 (4th Cir. 1998).

Nevertheless, "the deed of an ostensibly private organization orindividual" may at times demand to be treated "as if a State hascaused it to be performed." Brentwood Academy v. Tennessee Second-ary Sch. Athletic Ass’n, 121 S. Ct. 924, 930 (2001). Specifically,"state action may be found if, though only if, there is such a ‘closenexus between the State and the challenged action’ that seeminglyprivate behavior ‘may be fairly treated as that of the State itself.’" Id.(quoting Jackson v. Metropolitan Edison Co., 419 U.S. 345, 351(1974)); American Mfrs., 526 U.S. at 50 (when applying § 1983 to aprivate actor, "‘the party charged with the deprivation must be a per-son who may fairly be said to be a state actor.’" (quoting Lugar v.Edmondson Oil Co., 457 U.S. 922, 937 (1982)).

A determination of "whether [a private party’s] allegedly unconsti-tutional conduct is fairly attributable to the State," American Mfrs.,526 U.S. at 50, requires us to "begin[ ] by identifying ‘the specificconduct of which the plaintiff complains,’" id. at 51 (quoting Blum,457 U.S. at 1004). The inquiry is "necessarily fact-bound." Lugar,457 U.S. at 939.

What is fairly attributable is a matter of normative judg-ment, and the criteria lack rigid simplicity. From the rangeof circumstances that could point toward the State behind anindividual face, no one fact can function as a necessary con-dition across the board for finding state action; nor is any setof circumstances absolutely sufficient, for there may besome countervailing reason against attributing activity to thegovernment.

Brentwood, 121 S. Ct. at 930; see also Burton v. Wilmington ParkingAuth., 365 U.S. 715, 722 (1961) (noting that it is an "‘impossibletask’" to "fashion and apply a precise formula for recognition of state


responsibility under the Equal Protection Clause"); Arlosoroff v.NCAA, 746 F.2d 1019, 1021 (4th Cir. 1984) (recognizing that "[t]hereis no precise formula to determine whether otherwise private conductconstitutes ‘state action.’").

Nevertheless, several factors or circumstances bearing upon theissue of whether private conduct "can fairly be attributed to the State"for purposes of § 1983 liability have been clearly delineated by prece-dent. Blum, 457 U.S. at 1004. Of particular relevance here, theSupreme Court has held that challenged activity may be found to bestate action where "the State ‘has exercised coercive power or hasprovided such significant encouragement, either overt or covert, thatthe choice must in law be deemed to be that of the State.’" AmericanMfrs., 526 U.S. at 52 (quoting Blum, 457 U.S. at 1004); see alsoBrentwood, 121 S. Ct. at 930. And, "the required nexus may be pres-ent if the private entity has exercised powers that are ‘traditionally theexclusive prerogative of the State.’" Blum, 457 U.S. at 1005 (quotingJackson, 419 U.S. at 353); see also American Mfrs., 526 U.S. at 55;Brentwood, 121 S. Ct. at 930 ("We have treated a nominally privateentity as a state actor . . . when it has been delegated a public functionby the State." (citing West v. Atkins, 487 U.S. 42, 56 (1988)); Edmon-son v. Leesville Concrete Co., 500 U.S. 614, 627-28 (1991)); Gold-stein, 218 F.3d at 348 (holding "that when it has been established thatthe State has empowered, or is permitting, a private actor to home-stead on territory that has heretofore been the exclusive, traditionalprovince of the State, there need be no specific demonstration of anexus to the alleged constitutional violation").

Although not directly pertinent to the state action inquiry here,state action has also been found in circumstances where the privateactor operates as a "‘willful participant in joint activity with the Stateor its agents,’" Brentwood, 121 S. Ct. at 930 (quoting Lugar, 457 U.S.at 941), or when "a nominally private entity . . . is controlled by an‘agency of the State,’" id. (quoting Pennsylvania v. Board of Dirs.,353 U.S. 230, 231 (1957) (per curiam) (holding that state agency act-ing as a trustee for a private trust violated the Fourteenth Amendmentwhen it refused to allow admission of black applicants to a college inaccordance with the private trust that created it); see also Evans v.Newton, 382 U.S. 296, 302 (1966) (holding that park established forthe use of only white persons by a private trust must be treated as


public institution for purposes of the Fourteenth Amendment). And,state action has been found where a private entity is entwined withgovernmental policies or the government is entwined in the manage-ment or control of a private entity. See Brentwood, 121 S. Ct. at 927(holding that the regulatory activity of a private, statewide athleticassociation "should be treated as state action owing to the pervasiveentwinement of state school officials in the structure of the associa-tion."); Lebron v. National R.R. Passenger Corp., 513 U.S. 374, 400(1995) (holding that Amtrak, a corporation created and controlled bythe government, would be considered an agency or instrumentality ofthe government for purposes of individual constitutional rights);Evans, 382 U.S. at 299 ("[W]hen private individuals or groups areendowed by the State with powers or functions governmental innature, they become agencies or instrumentalities of the State andsubject to its constitutional limitations.").

Finally, we note that even the presence of these circumstances orfactors might not be conclusive of the state action issue because "factsthat suffice to show public action (or, standing alone, would requiresuch a finding) may be outweighed in the name of some value at oddswith finding public accountability in the circumstances." Brentwood,121 S. Ct. at 934; see Polk County v. Dodson, 454 U.S. 312, 323 n.13(1981) (holding that actions of a public defender employed by theState were private despite public employment because a publicdefender does "not ac[t] on behalf of the State; he is the State’s adver-sary").

IV.

On appeal, Mentavlos contends that the district court erred in con-cluding that Anderson and Saleeby did not act under color of state lawwhen they allegedly harassed and abused her because of her gender.Specifically, Mentavlos contends that the district court applied thewrong test for state action, and that we should conclude that the chal-lenged actions are fairly attributable to the State, and therefore weretaken under color of state law, because (1) training civilians for themilitary in a rigorous military environment is a traditional govern-mental function, and (2) the cadets were acting pursuant to the disci-plinary authority bestowed upon them by the rules, regulations, andcustoms of The Citadel, which receives substantial assistance, primar-


ily financial in nature, from the State of South Carolina. We addresseach contention in turn.

A.

We begin with Mentavlos’ assertion that the district court appliedthe wrong test for state action because the court cited to the "stateaction" criteria described by this court in Haavistola v. CommunityFire Company, 6 F.3d 211 (4th Cir. 1993), in rendering its decision.According to Mentavlos, this was error because Haavistola has nowbeen overruled, albeit implicitly, by our decision in Goldstein v.Chestnut Ridge Volunteer Fire Company, 218 F.3d 337 (4th Cir.2000). We disagree.4

Although "‘cases deciding when private action might be deemedthat of the state have not been a model of consistency,’" Lebron, 513U.S. at 378 (quoting Edmonson, 500 U.S. at 632 (O’Connor, J., dis-senting)), the critical inquiry has remained constant. After examiningthe relevant facts and circumstances, "the inquiry in each case iswhether the conduct is fairly attributable to the state." Arlosoroff, 746F.2d at 1021; see also Burton, 365 U.S. at 722); United Auto WorkersLocal 5285 v. Gaston Festivals, Inc., 43 F.3d 902, 906 (4th Cir. 1995)("The central inquiry in determining whether a private party’s conductwill be regarded as action of the government is whether the party canbe described in all fairness as a state actor." (internal quotation marksomitted)).

When determining whether challenged conduct is "fairly attribut-able" to the State, this court has, from precedents existing at the perti-nent times and in light of the specific facts before it, defined varioustests or factors which may be considered. For example, in Andrewsv. Federal Home Loan Bank, 998 F.2d 214 (4th Cir. 1993), we identi-fied four circumstances under which the Supreme Court had held that

4We note the compelling counter-argument that a panel of this courtcannot overrule, explicitly or implicitly, the precedent set by a priorpanel of this court. Only the Supreme Court or this court sitting en banccan do that. See Bell v. Jarvis, 236 F.3d 149, 159 (4th Cir. 2000) (enbanc). We simply do not read Goldstein as an attempt to do so.


a private party may be deemed a state actor for purposes of § 1983liability:

(1) when the state has coerced the private actor to commitan act that would be unconstitutional if done by the state; (2)when the state has sought to evade a clear constitutionalduty through delegation to a private actor; (3) when the statehas delegated a traditionally and exclusively public functionto a private actor; or (4) when the state has committed anunconstitutional act in the course of enforcing a right of aprivate citizen.

Id. at 217; see also DeBauche v. Trani, 191 F.3d 499, 507 (4th Cir.1999), cert. denied, 120 S. Ct. 1451 (2000).

In Haavistola, another panel of this court summarized three situa-tions in which conduct by a private entity could be fairly attributableto the state: (1) when a sufficiently close nexus exists between a regu-lated entity and a state such that the actions of the former are fairlytreated as those of the state; (2) when the state "has exercised coercivepower or has provided such significant encouragement that the actionmust in law be deemed to be that of the state"; and (3) "when the pri-vate entity has exercised powers that are traditionally the exclusiveprerogative of the state." Haavistola, 6 F.3d at 215 (internal citationsand quotation marks omitted).

Most recently, in Goldstein, we emphasized the fact-based natureof the state action inquiry, reiterating that "the state action determina-tion requires an examination of all the relevant circumstances, in anattempt to evaluate the degree of the Government’s participation inthe private party’s activities." Goldstein, 218 F.3d at 342 (internalquotation marks omitted). There, we identified several considerationswhich are pertinent to the inquiry: (1) "whether the injury caused isaggravated in a unique way by the incidents of governmental author-ity"; (2) "the extent and nature of public assistance and public benefitsaccorded the private entity"; (3) "the extent and nature of governmen-tal regulation over the institution"; and (4) "how the state itself viewsthe entity, i.e., whether the state itself regards the actor as a stateactor." Id. at 343 (internal quotation marks omitted). Like its pre-decessors in this circuit, however, the Goldstein decision summarized


considerations already set forth by precedent, and did not purport tooverrule our prior precedents or espouse new areas of inquiry. Indeed,Haavistola summarized the standard set forth by the Supreme Courtin Blum, 457 U.S. at 1004-05, see Haavistola, 6 F.3d at 215, whichis still relied upon by the Court today, see Brentwood, 121 S. Ct. at930.

Accordingly, we reject Mentavlos’ assertion that Haavistola wasoverruled by Goldstein and, as a consequence, that the district courtapplied an incorrect test to the facts before it. Like our colleagues inprior panel decisions, we are guided in this complex area by the fac-tors which have been described by the Supreme Court in prior prece-dents and which are pertinent to the circumstances of this case. Thus,we turn to the ultimate inquiry before us: Is there a sufficiently "closenexus" between the challenged actions of Anderson and Saleeby andthe State of South Carolina such that their actions "‘may be fairlytreated as that of the State itself.’" Brentwood, 121 S. Ct. at 930 (quot-ing Jackson, 419 U.S. at 351).

B.

We begin with Mentavlos’ claim that the actions of The Citadelcadets were taken "under color of" state law because the State has del-egated to The Citadel and its Corps of Cadets "‘powers traditionallyexclusively reserved to the State.’" See American Mfrs., 526 U.S. at55 (quoting Jackson, 419 U.S. at 352). Specifically, Mentavlos assertsthat The Citadel is in the business of serving the traditional govern-mental function of training civilians for the military in a rigorous mil-itary environment much like the United States service academies —Westpoint, the Naval Academy, and the Air Force Academy. Becausecadets at military academies have been considered to be "in the mili-tary" for purposes of the Feres doctrine, see Feres v. United States,340 U.S. 135, 146 (1950) (holding that military personnel may notbring suit under the FTCA for injuries sustained in the course of mili-tary service); see also Collins v. United States, 642 F.2d 217, 220-21(7th Cir. 1981) (applying Feres doctrine to a cadet at Air Force Acad-emy), the argument goes, we should hold that student cadets at TheCitadel are "in the military" for purposes of the color-of-state-lawrequirement of § 1983.


1.

Like the district court, we find Mentavlos’ proffered analogy tomilitary service academies and their cadets to be untenable. We rec-ognize that "[o]ne of the paradigmatic means by which a private partybecomes subject to section 1983 is through the government’s confer-ral upon that party of what is, at core, a sovereign power." Gaston,43 F.3d at 906. And, we have little trouble accepting that trainingcivilians who have enlisted in the military for military service is fairlycharacterized as a traditionally sovereign power. However, The Cita-del, unlike the military service academies, is not in the business oftraining soldiers for military service.

Although The Citadel utilizes a military-style environment, itsstated mission is "to educate male undergraduates as members of theSouth Carolina Corps of Cadets and to prepare them for post-graduatepositions of leadership through academic programs of recognizedexcellence supported by the best features of a structured military envi-ronment." Supp. J.A. 346. In other words, the mission of The Citadelis to educate civilian students and produce community leaders, whichhas never been held to be the exclusive prerogative of a State. Cf.Rendell-Baker, 457 U.S. at 842 (holding that education of malad-justed high school students, while a public function, is not one tradi-tionally reserved to the states); Arlosoroff, 746 F.2d at 1021 (holdingthat the regulation of inter-collegiate athletics is not a function tradi-tionally, exclusively reserved to the state). Noticeably absent, ofcourse, is a mission to train soldiers for the military.

Nor does the Citadel’s use of a military-style environment fairlycompel the conclusion that The Citadel has been delegated the sover-eign function of training young men and women for the military. Aspart of its curriculum, The Citadel requires its Corps of Cadets stu-dents to participate in a Senior ROTC program. But, like other state-supported colleges, The Citadel is not a formal part of the UnitedStates military, nor are its students enlisted members of a militarybranch. As is the case with ROTC students at all civilian college cam-puses, Citadel students may enlist in the armed forces in conjunctionwith their ROTC training, but have no service commitment by virtueof their mere attendance at The Citadel. They are no more membersof a military branch than students attending the other state-supported


colleges and universities in South Carolina. As the district court aptlyobserved:

[w]hile The Citadel bases its educational experience on amilitary model, the comparison to the [service] academiesends there. The education is no more at government expensethan at any other state supported college. Neither do Citadelstudents incur a service obligation simply because theyattend The Citadel. Most significantly, Citadel cadets are notmembers of the armed forces, unless they are members ofthe reserve as a consequence of signing a contract in aROTC program. In that regard, Citadel cadets stand in nodifferent position than an ROTC student at any other col-lege, whether public or private.

Mentavlos, 85 F. Supp. 2d at 622 (footnote omitted). The numbersconfirm this fact: only two of 1800 students at The Citadel in 1996were commissioned military officers (and those two only becausethey had attended an early commissioning program elsewhere) and itwas stipulated that only about one-third of the Corps of Cadets entersmilitary service upon graduation. Furthermore, none of the cadetsinvolved here (Mentavlos, Anderson, or Saleeby) held ROTC con-tracts. Consequently, we are not persuaded that The Citadel is analo-gous to the service academies of the United States military, or that ithas otherwise been delegated the sovereign task of training soldiersfor service in the military.5

For similar reasons, Mentavlos’ reliance upon application of theFeres doctrine to cadets at the military service academies is inapt. InCollins, the Seventh Circuit applied the Feres doctrine to a UnitedStates Air Force Academy cadet. See Collins, 642 F.2d at 220. AirForce Academy cadets, however, were considered members of the Air

5Mentavlos’ reliance upon Dobyns v. E-Systems, Inc., 667 F.2d 1219(5th Cir. 1982), does not counsel a different conclusion. In Dobyns, a pri-vate company engaged as a "peacekeeper," providing military protectionin the Sinai for the federal government, was held to be a state actor. Seeid. at 1220. The Citadel and its cadets, of course, are not engaged in mili-tary protection, nor have the functions of military protection or militarytraining been delegated to them by the state or federal governments.


Force by statute, subject to military discipline, and eligible for certainveterans’ benefits. See Collins, 642 F.2d at 220-21. Unlike studentsaccepted into one of the military service academies, who are on activeduty in the military and will enter military service, students at TheCitadel may or may not enter military service upon the completion oftheir collegiate years. Simply stated, students at The Citadel are not"in the military," nor is there precedent which would lead us to a con-trary result.6

Finally, Mentavlos’ reliance upon United States v. Virginia, 518U.S. 515 (1996), does not avail her. There, the Supreme Courtdescribed the mission of the Virginia Military Academy (VMI), asimilar state military college, as "producing citizen soldiers." Id. at541. As an initial premise, we note that the mission of The Citadelmakes no such reference to this military-type goal; rather, the statedmission of The Citadel is to produce community leaders, not soldiers.But, even if one of The Citadel’s purposes was to train civilian sol-diers and its upperclass cadets were engaged in serving that purpose,it would not be enough to transform the individual students’ actionsinto state action. Although military training of enlisted soldiers is agovernmental function, military-type training of non-enlisted studentsat a state-supported college is a much different charge. There arenumerous ROTC programs operating at public and private campusesall over this country, not to mention state supported and private acad-emies and schools with junior ROTC groups, performing military-type training similar to that performed at The Citadel. As noted by thedistrict court, there is "no significant distinction between what TheCitadel does and what many private secondary schools do: using amilitary model as a basis for instilling discipline and providing leader-ship training." Mentavlos, 85 F. Supp. 2d at 623. Consequently, thedistrict court observed that,

6Mentavlos’ reliance upon Alton v. Texas A&M University, 168 F.3d196, 199-200 (5th Cir. 1999), and Wake v. United States, 89 F.3d 53 (2dCir. 1996), is also misplaced. In Alton, the court assumed, but expresslydid not decide, that students at Texas A&M, a military college similar toThe Citadel, were state actors. See Alton, 168 F.3d at 199-200. In Wake,a student of Norwich University, also a military college, was held subjectto the Feres doctrine. See Wake, 89 F.3d at 62. However, the student wasan enlisted member of the Navy Reserves, traveling in a Navy ROTCvehicle incident to military service when injured. See id. at 55-57.


[u]nder [Mentavlos’] theory, every high school militaryacademy would be engaged in an "exclusive state function."The long standing prevalence of such private institutions,demonstrates the non-exclusivity of military model training.Indeed, it would appear that most high schools based on amilitary model are private institutions, although JuniorROTC is offered at a number of public schools as a compo-nent of the educational offerings. In short, education andtraining based on a military model are not historically anexclusive state function.

Id. Therefore, we hold that the district court did not err in concludingthat The Citadel cadets have not been cloaked by the State of SouthCarolina with sovereign powers traditionally reserved exclusively tothe government.

2.

Mentavlos also attempts to equate The Citadel to the miliary ser-vice academies because The Citadel and its cadets are entitled to cer-tain special benefits conferred by the federal and state governments.Specifically, under the Senior Reserve Officers’ Training Corps (theSenior "ROTC") Act, see 10 U.S.C.A. §§ 2101 to 2111b (West 1998& Supp. 2000), The Citadel and five additional civilian colleges aredesignated as "senior military colleges," recognized for the quality ofthe military leaders they produce, see 10 U.S.C.A. § 2111a(f).7 Assuch, Congress has provided that active duty military officers may bedesignated to serve as the Commandant or Assistant Commandant ofthe college and to serve as instructors and tactical officers under cer-tain circumstances, see 10 U.S.C.A. §§ 2111a(a)-(c), and studentswho graduate from senior military colleges are guaranteed active dutyassignments in the military upon graduation if they desire such ser-vice, are otherwise qualified medically and physically, and are recom-mended for such duty by their ROTC professors of military scienceat the college, see 10 U.S.C.A. § 2111a(e). South Carolina also

7The six Senior Military Colleges are Texas A & M University, Nor-wich University, The Virginia Military Institute, The Citadel, VirginiaPolytechnic Institute and State University, and North Georgia Collegeand State University. See 10 U.S.C.A. § 2111a(f) (West 1998).


affords special consideration to certain persons affiliated with TheCitadel, although not to the student cadets. It has provided that "[a]llmembers of the board of visitors, administrative staff and faculty per-sonnel of The Citadel, the Military College of South Carolina, shallbe eligible to be commissioned officers in the unorganized militia ofSouth Carolina." S.C. Code Ann. § 25-1-520 (Law. Co-op. 1989).

Mentavlos claims that because the United States Congress has rec-ognized The Citadel as a "senior military college" entitled to certainfederal benefits and because the South Carolina legislature hasbestowed special consideration to it, the State of South Carolinawould consider the actions of the cadets to be governmental action bythe State itself. We disagree.

By legislation, Congress has provided that senior military collegesmay be provided with military officers to serve in the college admin-istration and that graduates of those colleges, if they so request, willbe allowed to join and serve in the military as commissioned officersif otherwise qualified. At best, however, this legislation reflects rec-ognition of the value of the military type experience provided by thecolleges and, in that respect, The Citadel and its cadets may indirectlyserve a governmental function. But, this is insufficient to support afinding of state action. Whereas state action may been found "in theexercise by a private entity of powers traditionally exclusivelyreserved to the State," Jackson, 419 U.S. at 352, the "public functiontest is so carefully confined" that it "has been found in only narrowcircumstances," Goldstein, 218 F.3d at 348 (internal quotation marksomitted). See also DeBauche, 191 F.3d at 508 (noting that the publicfunction "category is very narrow"). "[T]he relevant question is notsimply whether a private group is serving a public function," butwhether "the function performed has been traditionally the exclusiveprerogative of the State." Rendell-Baker, 457 U.S. at 842 (internalquotation marks omitted); see also Jackson, 419 U.S. at 353; Haavis-tola, 6 F.3d at 216. Thus, "[t]he fact that a private entity performs afunction which serves the public does not make its acts governmentalaction." American Mfrs., 526 U.S. at 56 (quoting San Francisco Arts& Athletics, Inc. v. United States Olympic Comm’n, 483 U.S. 522,544 (1987)). Consequently, it cannot fairly be said that Congress, byaffording a senior military college and its cadets certain legislative


benefits, delegated a traditional, exclusive governmental function toThe Citadel or to its non-enlisted, non-military student cadets.

Nor are we persuaded by Mentavlos’ claim that the State of SouthCarolina would view Citadel cadets as state actors as a consequenceof this legislative enactment. In the context of the traditional, exclu-sive governmental function test, "[a]nother factor relevant to the stateaction determination is how the state itself views the entity." Gold-stein, 218 F.3d at 347; see also Haavistola, 6 F.3d at 218 (holdingthat the determination of "when a private entity assumes the role ofstate actor due to its involvement or provision of an exclusive publicfunction . . . hinges on how a given state itself views the conduct ofthe function by the private entity."). While not a dispositive factor, thefact that a state views a private entity as a state actor understandably"militates in favor of our finding of state action." Goldstein, 218 F.3dat 347. Mentavlos, however, points to nothing within the federal actwhich would support a conclusion that the State of South Carolinawould consider Citadel students to be state actors, for whose actionsthe State should be held liable. And, the contention that the State ofSouth Carolina would consider The Citadel cadets to be state actorsby virtue of a state legislative enactment according a special benefit,not upon the cadets, but upon employees and governing members ofThe Citadel, is plainly without merit.

C.

Mentavlos next contends that the actions of Anderson and Saleebyare "fairly attributable to the State," and therefore should be consid-ered to have been taken under color of state law, because the Stateprovides financial assistance to The Citadel and extensively regulatesits military program. We disagree.

As noted previously, because Anderson and Saleeby are privatestudents, they may not be held to constitutional standards unless thereis a sufficiently "close nexus" between the State and their challengedactions such that "the latter may be fairly treated as that of the Stateitself." American Mfrs., 526 U.S. at 52 (internal quotation marksomitted); see Brentwood, 121 S. Ct. at 930. The determination of"[w]hether such a ‘close nexus’ exists," in turn, "depends on whetherthe State ‘has exercised coercive power or has provided such signifi-


cant encouragement, either overt or covert, that the choice must inlaw be deemed to be that of the State.’" American Mfrs., 526 U.S. at52 (quoting Blum, 457 U.S. at 1004)). Action which is taken by pri-vate persons "with the mere approval or acquiescence of the State" isnot sufficient to justify a holding that the action is state action. Ameri-can Mfrs., 526 U.S. at 52; see also Flagg Bros. v. Brooks, 436 U.S.149, 164 (1978) ("This Court . . . has never held that a State’s mereacquiescence in a private action converts that action into that of theState."). More than the mere adoption of "‘a passive position towardthe underlying private conduct’" is required. Goldstein, 218 F.3d at342 (quoting Skinner v. Ry. Labor Executive Ass’n, 489 U.S. 602, 615(1989). Rather, we look for "indices of the Government’s encourage-ment, endorsement, and participation" in the challenged actions. Skin-ner, 489 U.S. at 615-616.

The district court found that Mentavlos failed to make this show-ing, noting that while the actions of Anderson and Saleeby "may havebeen made possible by the system established by the state," the "ca-dets did not receive significant encouragement and did not exercisethe state’s coercive powers" in so acting. Mentavlos, 85 F.Supp.2d at625. We agree.

1.

We need not tarry long with Mentavlos’ claim that Anderson andSaleeby were state actors for purposes of § 1983 because The Citadel,as a state-supported college, is governed by state officials whose pow-ers are defined by statute and receives financial assistance and othersupport from the state. See generally S.C. Code Ann. § 59-101-10(Law. Co-op. Supp. 2000) (listing state-supported colleges and uni-versities in South Carolina); S.C. Code Ann. §§ 59-121-10 to 450(Law. Co-op. 1990 & Supp. 2000) (statutes pertaining to the opera-tion of The Citadel). While substantial state assistance is generally afactor to be considered in determining whether the state has coercedor significantly encouraged private action, see Goldstein, 218 F.3d at347, a private party’s dependence upon the state for assistance, evenif substantial, does not transform its actions into actions of the state,see Rendell-Baker, 457 U.S. at 840-41 (holding that a private school’snear total dependence upon the State for funds did not render itsemployee discharge decisions acts of the State); Blum, 457 U.S. at


1011 (holding that similar dependence of nursing homes on statefunds did not make the acts of its physicians and administrators actsof the State); Goldstein, 218 F.3d at 347 (the "receipt of state fundsalone is insufficient to transform private actions into state actions"(internal quotation marks omitted)). In this case, The Citadel’s receiptof state financial assistance renders it no different in any materialrespect from the other state-supported institutions of higher learningin the state. See e.g. S.C. Code Ann. §§ 59-117-10 to 330 (Law. Co-op. 1990 & Supp. 2000) (statutes pertaining to the University ofSouth Carolina); S.C. Code Ann. §§ 59-119-10 to 1050 (Law. Co-op.1990 & Supp. 2000) (statutes pertaining to Clemson University).

Mentavlos’ claim in this regard, however, also fails on a morebasic level. While state assistance provided to The Citadel might bepertinent to a determination of whether The Citadel is a state actor,that is not the issue before us. Nor, for that matter, does it appear tobe a fact in dispute. Rather, this case involves the question of whetherstudents who attend The Citadel, as opposed to The Citadel or itsemployees or administrators, are state actors for purposes of § 1983.The Citadel was created by and receives assistance from the state, asall state-supported colleges do, and its employees are paid by thestate. But, Mentavlos has pointed to no special state assistance, finan-cial or otherwise, which was provided to the students of The Citadel,much less such assistance which could warrant a finding that theywere state actors. Of course, we cannot fairly view the unauthorizedactions of private students to be state action merely because theyattend a state-supported college and receive the benefit of publicfunds.

2.

We are also unpersuaded by Mentavlos’ claim that the State ofSouth Carolina’s regulation of The Citadel and, in turn, The Citadel’srules and regulations made applicable to its students, should compelthe conclusion that Anderson and Saleeby were acting "under colorof" state law when they engaged in the challenged actions. Specifi-cally, Mentavlos claims that upperclass cadets at The Citadel, by vir-tue of the Cadet Regulations (i.e., the Blue Book) and the customs atthe school, were given broad power or authority to punish freshmen


"fourth class" cadets and to engage in hazing such as that allegedlysuffered by Mentavlos.

Although Mentavlos correctly asserts that "the extent and nature ofgovernmental regulation over the institution" is a factor to be consid-ered in the state action inquiry, see Goldstein, 218 F.3d at 343, themere fact that a private individual or "business is subject to state regu-lation does not by itself convert its action into that of the State," Blum,457 U.S. at 1004 (quoting Jackson, 419 U.S. at 350). And, "state reg-ulation unrelated to the alleged constitutional violation, even if exten-sive, is not sufficient, in itself," to transform private action into stateaction. Goldstein, 218 F.3d at 347.

In this case, contrary to Mentavlos’ characterization, the Blue Bookdoes not grant to upperclass cadets broad power or authority to disci-pline freshmen cadets, nor cloak upperclass cadets with the authorityof the State for all purposes. Rather, the authority of upperclass cadetsat The Citadel is quite limited. Freshmen cadets are directed to obeyorders from upperclass cadets. But, within the confines of the samesystem creating the authority of upperclass cadets to correct freshmencadets for minor violations and to report others, The Citadel expresslyrequires the cadets to deal with the incoming freshmen women in aprofessional manner and expressly prohibits hazing, abusive treat-ment, or discrimination of any student, male or female. Cadets arerequired to obtain express permission from a fellow cadet beforeengaging in even the slightest touching of the cadet, and upperclasscadets are not authorized to impose disciplinary action, except for themost minor rule infractions.

In addition to the limited nature of this grant of authority, The Cita-del provides its students with a variety of methods to report violationsof the fourth class system, requires the immediate reporting of allegedabuses by all students, and renders expedient punishment for viola-tions of the fourth class system, including violations of the prohibitionagainst abusive or discriminatory treatment. Indeed, the abuses Men-tavlos reported were punished when brought to the attention of TheCitadel administration and were not taken lightly.

Consequently, upperclass Citadel cadets have some limited mea-sure of authority over freshmen cadets like Mentavlos by virtue of the


unique fourth class system created and sanctioned by The Citadel andThe Citadel administration has tolerated the not uncommon military-type practice of upperclassmen mildly harassing freshmen either ver-bally or by requiring them to engage in undesirable, but physicallyharmless, tasks such as cleaning or polishing. However, the schoolclearly "did not endorse or encourage abuses of the fourth class sys-tem and, in fact, endeavored to discourage abuses of the type allegedby" Mentavlos. Mentavlos, 85 F. Supp. 2d at 619. Additionally, Men-tavlos presented no contrary evidence that any member of The Citadeladministration, faculty, or staff ever encouraged, endorsed, partici-pated in, refused to prevent, or acquiesced in the challenged actions.

In Milburn v. Anne Arundel County Department of Social Services,871 F.2d 474, 479 (4th Cir. 1989), we declined to hold that abusivefoster parents were "state actors" for purposes of § 1983, despite thefact that the foster parents were licensed by the state and wereentrusted by the state with the care of the abused child. The state "wasnot responsible for the specific conduct of which the plaintiff com-plain[ed], that is, the physical child abuse itself . . .[,] exercised nocoercive power over the [foster parents]," and did not "encouragethem" in any way. Id.; see also Leeds v. Meltz, 85 F.3d 51, 54 (2d Cir.1996) (holding that extensive regulation and public funding, whilefactors to be considered, cannot "transform a private actor into a stateactor; instead, the state must have exerted its coercive power over, orprovided significant encouragement to, the defendant before the latterwill be deemed a state actor").

Similarly, the findings of the district court in this case, which arenot clearly erroneous, demonstrate that the challenged actions ofAnderson and Saleeby could not be fairly characterized as taken infurtherance of the limited authority granted to upper class cadets toinstruct and correct fourth class cadets under the Blue Book, nor takenby virtue of a Citadel "custom" to engage in the types of abusive,harassing acts of which Mentavlos’ complains.

3.

Mentavlos advances two additional arguments as to why we shouldconsider the challenged actions of Anderson and Saleeby to be stateaction, neither of which we find to be persuasive.


First, Mentavlos asserts that it is of no consequence that Andersonand Saleeby acted in obvious contravention of the Blue Book’sexpress prohibitions because state officials acting in their officialcapacities are generally held to act "under color of" state law, evenif they act in abuse of their lawful authority. See United States v.Classic, 313 U.S. 299, 326 (1941); Ex parte Virginia, 100 U.S. 339,346-47 (1880). Such a "[m]isuse of power, possessed by virtue ofstate law and made possible only because the wrongdoer is clothedwith the authority of state law," Mentavlos asserts, must be consid-ered to be action taken "under color of" state law. Classic, 313 U.S.at 326 (finding that state election officials acted "under color of" statelaw when they failed to count votes as cast, altered ballots, and falsi-fied certification of the votes); see also Screws v. United States, 325U.S. 91, 107 (1945) (finding that a sheriff and his deputy acted "undercolor of" state law when they killed a prisoner in their care withoutjustification). Because the Blue Book also required freshmen to obeythe orders of upperclass cadets, the argument goes, the upperclasscadets were effectively placed in a position analogous to state lawenforcement officials, rendering their wrongful actions state action forpurposes of § 1983.

In support of this proffered analogy, Mentavlos relies particularlyupon our decision in Scott v. Vandiver, 476 F.2d 238 (4th Cir. 1973),in which we held that two county employees deputized by a localsheriff could be "state actors" for purposes of § 1983 where they mis-used the law enforcement power granted by state law by utilizingexcessive force in trying to arrest an innocent person. Pursuant to alongstanding agreement with the county supervisor, county employ-ees could be requested to assist the sheriff on manhunts and the twomen involved had served in this role in the past. As such, we held thatthe county employees were also temporary law enforcement officerswhen they arrested the plaintiff, "bring[ing] them squarely within§ 1983." Id. at 241.

In contrast to the county employees in Scott, who had been desig-nated law enforcement officials at the time they engaged in the chal-lenged actions, we declined to hold county employees liable under§ 1983 for an assault upon a fellow employee in Hughes v. HalifaxCounty School Board, 855 F.2d 183 (4th Cir. 1988), even though theassault occurred during working hours, on county property, for


motives related to their employment with the county. We rejected theclaim that the co-employees "were clothed with state authority in soacting," id. at 186, noting that unlike in the case of police officers orjudges who abuse their state authority while clothed with state power,"[t]he indicia of state authority just isn’t the same," id. at 187.

In this case, we are not confronted with the question of whetherstate officials or employees have acted in abuse of lawful authoritygranted to them by the State. The Citadel may operate under a stricterform of student self-government, and one unique to military-style col-leges, but the concept of student self-governance at public and privateinstitutions of higher education, including the use of honor codes andthe limited delegation of disciplinary authority to certain members ofthe student body, is hardly a novel concept. A public school or collegestudent is not fairly transformed into a state official or state actormerely because the school has delegated to that student or otherwiseallowed the student some limited authority to act. Cf. Yeo v. Town ofLexington, 131 F.3d 241 (1st Cir. 1997) (en banc) (holding that stu-dent editor’s decision not to publish an ad in the school yearbook wasnot state action); Indorato v. Patton, 994 F. Supp. 300 (E.D. Pa. 1998)(holding that state university football player who struck a referee dur-ing a sanctioned football game was not a state actor).

Instead, we are called upon to decide whether the State has encour-aged or coerced private individuals to take action which is violativeof the constitutional rights of another. At best, Anderson and Saleeby,by virtue of their status as college juniors at The Citadel, were askedand expected to assist in the instruction and correction of freshmencadets in the applicable rules of The Citadel, but were expressly pro-hibited from engaging in any actions which could be considered haz-ing or otherwise abusive of the freshmen students. Mentavlos, havingbeen provided with a copy of the regulations governing their conduct,was made aware of the limitations on the authority given to upper-class cadets and knew that most or all of the alleged instances ofharassment were beyond the authority given and, indeed, in violationof The Citadel’s hazing policy. We do not view this limited grant ofauthority to upperclass students to be analogous to the situation ofpolice officers given broad authority to detain and arrest. Unlike inthe case of police officers, or other state officials using their positionsto accomplish an unlawful purpose, the cadets were not cloaked with


such broad power, nor were they acting pursuant to the limitedauthority vested in them by the Blue Book. They were students at astate-supported college, acting in a manner proscribed by The Citadeland known by Mentavlos to be violative of the applicable rules.Under these circumstances, their actions cannot in law or fairness beattributed to the State of South Carolina, which is the pertinentinquiry demanded by the facts before us today. See Brentwood, 121S. Ct. at 930; American Mfrs., 526 U.S. at 50; cf. Lugar, 457 U.S. at940 (holding that plaintiff did not state a cause of action under § 1983because the allegation that a private party’s conduct was "unlawfulunder state law" was tantamount to saying that the conduct "could notbe ascribed to any governmental decision; rather, respondents wereacting contrary to the relevant policy articulated by the state" (internalquotation marks omitted)).

Mentavlos also offers the Court’s recent decision in Santa Fe Inde-pendent School District v. Doe, 120 S. Ct. 2266 (2000), as support forher claim that the actions of the cadets should be attributed to TheCitadel and the state. In Santa Fe, the Supreme Court confronted thequestion of whether student-led, student-initiated invocations offeredprior to football games should be considered private speech endorsingreligion protected by the Free Speech and Free Exercise Clause orgovernment speech endorsing religion which the EstablishmentClause would forbid. Although the school district’s policy purportedto allow the students to offer either a religious or non-religious invo-cation or message, the Court concluded that the religious messagescould not be considered private speech because the messages wereauthorized by government policy, took place on government propertyat government-sponsored school-related events and, of particular sig-nificance, were explicitly and implicitly endorsed and encouraged bythe school district. See id. at 2275-77. To the extent Santa Fe hasapplication to the claim before us, it is readily distinguishable becauseThe Citadel did not authorize its students to engage in the challengedharassing actions, and did not endorse or encourage them to do so.The Citadel, on the contrary, expressly prohibited acts of this nature.

Because the cadets’ decision to engage in unauthorized harassmentof Mentavlos was not coerced, compelled, or encouraged by any law,regulation or custom of the State of South Carolina or The Citadel,we hold that the actions of the student cadets cannot "in all fairness"


be considered attributable to the State for purposes of § 1983. Accord-ingly, the requisite "close nexus" between The Citadel’s creation andsanctioning of the fourth class system and the specific actions whichMentavlos alleges violated her constitutional right to equal protectionunder the Fourteenth Amendment is lacking.

V.

For the foregoing reasons, we agree with the district court’s deter-mination that the alleged conduct of Citadel cadets Anderson andSaleeby is not "fairly attributable" to The Citadel or the State of SouthCarolina such that it would be proper to conclude that they were stateactors when they allegedly deprived Mentavlos of her constitutionalright to equal protection under the Constitution. Because Andersonand Saleeby did not act "under color of" state law when they engagedin the challenged actions, we affirm the district court’s grant of sum-mary judgment to them.8

AFFIRMED

8Because we conclude that Anderson and Saleeby did not act undercolor of state law, we need not reach the issue of whether their actions,if taken under color of state law, would have deprived Mentavlos of aright secured by federal law. Consequently, we also need not considerMentavlos’ appeal of the district court’s grant of summary judgment toSaleeby on the additional ground that Mentavlos failed to present evi-dence that he acted with improper gender animus.


Documents

PUBLISHED UNITED STATES COURT OF APPEALS · 1Faulkner, the first female admitted to The Citadel Corps of Cadets, joined the Corps on August 12, 1995, by virtue of court order, but